THE HONOURABLE MR JUSTICE SUPPERSTONE
Introduction
1.
The Commissioner of Police of the Metropolis (“the Appellant”) appeals
from the judgment of an Employment Tribunal sitting at Reading (“the tribunal”),
chaired by Employment Judge Byrne, and sent to the parties on 15 February 2012
which held that the Appellant was liable in respect of unlawful discrimination
found to have been committed against Mr Kevin Maxwell (who we shall refer to as
“the Claimant”) (by way of direct discrimination, harassment and victimisation
on grounds of race and sexual orientation) in relation to certain complaints
raised by the Claimant.
2.
At all material times the Claimant was employed by the Appellant as a
Detective Constable within Specialist Operations (SO15) Counter Terrorism
Command Special Branch of the Metropolitan Police Service (MPS). He is of
mixed race and is gay. He identifies himself as “black”. He reported sick due
to stress on 25 July 2009. At the time of the hearing before the Employment
Tribunal the Claimant had not returned to work.
3.
The Claimant claims that the Appellant has subjected him to:
(1) Direct racial discrimination under
sections 1(1)(a) and 4(2) of the Race Relations Act 1976 (“the 1976
Act”);
(2) Direct sexual orientation
discrimination under Regulations 3(1)(a) and 6(1) of the Employment Equality
(Sexual Orientation) Regulations 2003 (“the 2003 Regulations”);
(3) Harassment on racial grounds under
section 3A of the 1976 Act;
(4) Harassment on grounds of sexual
orientation under Regulations 5 of the 2003 Regulations; and
(5) Victimisation under section 2 of
the 1976 Act and Regulation 4 of the 2003 Regulations.
4.
The Claimant brought two claims, both heard together. In the first
claim the Claimant raised complaint in relation to over 120 allegations of
direct discrimination and/or harassment and/or victimisation on grounds of race
and/or sexual orientation. In the second claim the Claimant made complaint
that he had been victimised on grounds of race and sexual orientation in
relation to one further matter. The second claim concerned a leak to a Sun journalist
of information which the journalist proposed to use to write a story critical
of the Claimant’s claim.
5.
Mr Philip Mead appears for the Appellant and Mr Kweku Aggrey-Orleans
appears for the Claimant. Mr Mead and Mr Aggrey-Orleans both appeared before
the tribunal.
6.
There were approximately 2,300 documents before the tribunal. The
tribunal had four reading days before the hearing commenced. The hearing
lasted 12 days. The tribunal then held meetings over 12 days before the
reserved judgment was delivered, which runs to 113 pages.
Legal
framework
General
principles
Discrimination
7.
In Chapman v Simon [1994] IRLR 124 Peter Gibson LJ said at
para 41:
“Complaints of racial discrimination are by their nature
serious. The complainant who can establish unlawful discrimination against him
or her on racial grounds has suffered a serious wrong, for which Parliament by
the Race Relations Act 1976 has provided remedies. … It is therefore
appropriate that in such a case as the present, Industrial Tribunals should
perform their duties with meticulous care.”
The judge continued (at para 42):
“… It is the act of which complaint is made and no other that
the Tribunal must consider and rule upon…”
At paragraph 43 the judge said:
“Racial discrimination may be established as a matter of direct
primary fact. … More often racial discrimination will have to be established,
if at all, as a matter of inference. It is of the greatest importance that the
primary facts from which such inference is drawn are set out with clarity by
the Tribunal in its fact-finding role, so that the validity of the inference
can be examined. …”
At paragraph 46 the judge said:
“I also agree with the Employment Appeal Tribunal in accepting
the following submission of Mrs Chapman and the Council, viz ‘that having found
‘Mrs Chapmans conscious attitude to race was impeccable’, there were no primary
facts found from which it is possible to infer ‘subconscious’ or ‘unconscious’
racial prejudice’…”.
8.
In Igen v Wong [2005] ICR 931 Peter Gibson LJ stated at
paragraph 17:
“The statutory amendments clearly require the Employment
Tribunal to go through a two-stage process if the complaint of the complainant
is to be upheld. The first stage requires the complainant to prove facts from
which the Tribunal could, apart from the section, conclude in the absence of an
adequate explanation that the respondent has committed, or is to be treated as
having committed, the unlawful act of discrimination against the complainant.
The second stage, which only comes into effect if the complainant has proved
those facts, requires the respondent to prove that he did not commit or is not
to be treated as having committed the unlawful act, if the complaint is not
upheld.”
Peter Gibson LJ said at paragraph 29:
“The relevant act is, in a race discrimination case such as Webster,
that (a) in circumstances relevant for the purposes of any provision of the
1976 Act (for example in relation to employment in the circumstances specified
in section 4 of the Act), (b) the alleged discriminator treats another person
less favourably and (c) does so on racial grounds. All of those facts are
facts which the complainant, in our judgment, needs to prove on the balance of
probabilities.”
9.
In Laing v Manchester City Council [2006] ICR 1519 Elias J (President) said (at para 71):
“There still seems to be much confusion created by the decision
in Igen [2005] ICR 931. What must be borne in mind by a tribunal faced
with a race claim is that ultimately the issue is whether or not the employer
has committed an act of race discrimination. The shifting in the burden of
proof simply recognises the fact that there are problems of proof facing an
employee which would be very difficult to overcome if the employee had at all
stages to satisfy the tribunal on the balance of probabilities that certain
treatment had been by reason of race.”
Elias J continued:
“76. Whilst, as we have emphasised, it will usually be desirable
for a tribunal to go through the two stages suggested in Igen, it is not
necessarily an error of law to fail to do so. There is no purpose in
compelling tribunals in every case to go through each stage. They are not
answering an examination question, and nor should the purpose of the law be to
set up hurdles designed to trip them up. The reason for the two-stage approach
is that there may be circumstances where it would be to the detriment of the
employee, if there were a prima facie case and no burden was placed on the
employer, because they may be imposing a burden on the employee which he cannot
fairly be expected to have discharged and which should evidentially have
shifted to the employer. But where the tribunal has effectively acted at least
on the assumption that the burden may have shifted, and has considered the
explanation put forward by the employer, then there is no prejudice to the
employee whatsoever.
77. Indeed, it is important to emphasise that it is not the
employee who will be disadvantaged if the tribunal focuses only on the second
stage. Rather the risk is to an employer who may be found not to have
discharged a burden which the tribunal ought not to have placed on him in the
first place. That is something which tribunals will have to bear in mind if
they miss out the first stage. Moreover, if the employer’s evidence strongly
suggests that he was in fact discriminating on grounds of race, that evidence
could surely be relied on by the tribunal to reach a finding of discrimination
even if the prima facie case had not been established. The tribunal cannot
ignore damning evidence from the employer as to the explanation for his conduct
simply because the employee has not raised a sufficiently strong case at the
first stage. That would be to let form rule over substance.”
10.
In Madarassy v Nomura International plc [2007] ICR 867 Mummery LJ said:
“69. The Employment Appeal Tribunal (Elias J (President)
presiding) in Laing rightly rejected the complainant’s submission. It
accepted the respondent’s submission that, at the first stage, the tribunal should
have regard to all the evidence, whether it was given on behalf of the
complainant or on behalf of the respondent, in order to see what inferences
‘could’ properly be drawn from the evidence. The treatment (or mistreatment)
of others by the alleged discriminator was plainly a highly material fact. All
the evidence has to be considered in deciding whether ‘a prima facie case
exists sufficient to require an explanation’: para 59. The only factor which
section 63A(2) stipulates shall not form part of the material from which
inferences may be drawn at the first stage is ‘the absence of an adequate
explanation’ from the respondent.
79. … It seems to me that the approach of Elias J is sound in
principle and workable in practice. This court should approve it. No
alteration to the guidelines in Igen Ltd v Wong is necessary.”
At paragraph 83 Mummery LJ cited with approval the statement of
Lord Nicholls in Shammoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337:
“The most convenient and appropriate way to tackle the issues
arising on any discrimination application must always depend upon the nature of
the issues and all the circumstances of the case.”
In the recent case of Warby v Wunda Group plc
(Appeal No. UKEAT/0434/11/CEA) Langstaff J (President) referred to the judgment
of Elias LJ in Grant v HM Land Registry and Anor [2011] EWCA Civ 769 where the importance of the particular circumstances were emphasised: “for
example, it will generally be relevant to note to whom a remark is made, in
what terms, and to what purpose”. Langstaff J added:
“We therefore accept the Respondent’s submission that context is
everything. It is for a Tribunal who hears the witnesses, whose job it is to
determine the facts, and who considers the submissions made to it in the light
of having heard these witnesses and determined those facts, to decide what the
context is and to contextualise what has taken place.”
Harassment
11.
Section 3A of the 1976 Act, which is headed “Harassment” states:
“(1) A person subjects another to harassment in any
circumstances relevant for the purposes of any provision referred to in s.1(1B)
where, on grounds of race or ethnic or national origins, he engages in unwanted
conduct which has the purpose or effect of—
(a) violating that other person’s
dignity, or
(b) creating an intimidating,
hostile, degrading, humiliating or offensive environment for him.
(2) Conduct shall be regarded as having the effect specified in
para (a) or (b) of sub-section (1) only if, having regard to all the
circumstances, including in particular the perception of that other person, it
should reasonably be considered as having that effect.”
12.
The proviso in sub-section (2) creates an objective standard as
Underhill J (President) observed in Richmond Pharmacology Ltd v Dhaliwal
[2009] IRLR 336 at para 15:
“Thus if, for example, the tribunal believes that the claimant
was unreasonably prone to take offence, then, even if she did genuinely feel
her dignity to have been violated, there will have been no harassment within
the meaning of the section. Whether it was reasonable for the claimant to have
felt her dignity to have been violated is quintessentially a matter for the
factual assessment of the tribunal. It will be important for it to have regard
to all the relevant circumstances, including the context of the conduct in
question. One question that may be material is whether it should reasonably
have been apparent whether the conduct was, or was not, intended to cause
offence (or, more precisely, to produce the prescribed consequences): the same
remark may have a very different weight if it was evidently innocently intended
than if it was evidently intended to hurt.”
See also Regulation 5 of the Employment Equality (Sexual
Orientation) Regulations 2003.
Victimisation
13.
The reverse burden of proof under section 54A(2) of the Race
Relations Act 1976 does not apply to cases of victimisation.
14.
In Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 Lord Nicholls at paragraph 16 stated:
“The primary object of the victimisation provisions in section 2
is to ensure that persons are not penalised or prejudiced because they have
taken steps to exercise their statutory rights or are intending to do so. The
structure of section 2 is similar to the structure of section 1(1)(a), but with
an important difference. Racial discrimination, in section 1(1)(a), is
discrimination on the grounds of race. Discrimination by victimisation, in
section 2, is discrimination on one of the grounds, colloquially known as the
protected acts, described in section 2.”
15.
Section 2(1) defines discrimination by way of victimisation as follows:
“A person (‘the discriminator’) discriminates against another
person (‘the person victimised’) in any circumstances relevant for the purposes
of any provision of this Act if he treats the person victimised less favourably
than in those circumstances he treats or would treat other persons, and does so
by reason that the person victimised has—(a) brought proceedings against the discriminator
or any other person under this Act; or (b) given evidence or information in
connection with proceedings brought by any person against the discriminator or
any other person under this Act; or (c) otherwise done anything under or by
reference to this Act in relation to the discriminator or any other person; or
(d) alleged that the discriminator or any other person has committed an act
which (whether or not the allegation so states) would amount to a contravention
of this Act, or by reason that the discriminator knows that the person
victimised intends to do any of those things, or suspects that the person
victimised has done, or intends to do, any of them.”
Section 2(1) does not apply to treatment of a person by reason of
any allegation made by him if the allegation was false and not made in good
faith. (See also Regulation 4 of the Employment Equality (Sexual
Orientation) Regulations 2003).
Limitation
16.
The material part of section 68 of the 1976 Act as to the period within
which proceedings are to be brought states:
“(1) An [employment tribunal] shall not consider a complaint
under section 54 unless it is presented to the tribunal before the end of—
(a) the period of three months
beginning when the act complained of was done;
(6) A court or tribunal may nevertheless consider any such
[complaint or claim] which is out of time if, in all the circumstances of the
case, it considers that it is just and equitable to do so.
(7) For the purposes of this section—
(b) any act extending over a period
shall be treated as done at the end of that period;…”
This provision in similar terms appears in other discrimination
legislation (see Regulation 34 of the Employment Equality (Sexual
Orientation) Regulations 2003).
17.
In Aziz v FDA [2010] EWCA Civ 304 Jackson LJ said at
paragraph 33:
“In considering whether separate incidents form part of ‘an act
extending over a period’ within section 68(7)(b) of the 1976 Act, one relevant
but not conclusive factor is whether the same individuals or different
individuals were involved in those incidents: see British Medical
Association v Chaudhary, EAT, 24 March 2004 (unreported, UKEAT/1351/01/DA
and UKEAT/0804/02/DA) at paragraph 208.”
Vicarious liability
18.
Liability of the employer under the 1976 Act and the 2003 Regulations is
regulated by section 32(1) of the 1976 Act, and by Regulation 22(1) of the 2003
Regulations. The material words are identical. Section 32 of the 1976 Act
headed “Liability of employers and principals” provides, so far as is material:
“(1) Anything done by a person in the course of his employment
shall be treated for the purposes of this Act (except as regards offences
thereunder) as done by his employer as well as by him, whether or not it was
done with the employer’s knowledge or approval.”
19.
Section 76A of the 1976 Act headed “Police forces” provides, in so far
as is material:
“(1) In this section, ‘relevant police office’ means—
(a) the office of constable held—
(i) as a member of
a police force;
(2) For the purposes of Part II, the holding of a relevant
police office shall be treated as employment—
(a) by the chief officer of police as
respects any act done by him in relation to that office or a holder of it;
(3) For the purposes of section 32—
(a) the holding of a relevant police
office shall be treated as employment by the chief officer of police (and as
not being employment by any other person); and
(b) anything done by a person holding
such an office in the performance, or purported performance, of his functions
shall be treated as done in the course of that employment.”
Regulation 11 of the Employment Equality (Sexual Orientation)
Regulations 2003 performs an identical function in relation to the
operation of the 2003 Regulations.
The Parties’ Submissions and Discussion
The First Claim
General
20.
Most if not all, of the criticisms of the tribunal relate to the first
stage of the process. Mr Mead identifies certain common threads of appeal. He
submits that the tribunal erred in three particular respects: first, by failing
to set out the primary facts with clarity so that the validity of the inference
can be examined (in accordance with the judgment of the Court of Appeal in Chapman
v Simon); second, by wrongly causing or permitting the burden of proof
to transfer, by showing that conduct is unreasonable or unfair (see Bahl
v Law Society [2003] IRLR 640 (EAT) approved in Bahl v Law
Society [2004] IRLR 799); and third, by failing to establish a prima
facie case that treatment was on grounds of a prescribed characteristic, before
permitting the burden of proof to transfer (in accordance with the judgment in Madarassy
v Nomura International).
Ground 17: lack of reliability of the Claimant’s
uncorroborated evidence
21.
In his skeleton argument Mr Mead raised this head of appeal at the outset
on the basis that if this tribunal finds there is merit in the Appellant’s
arguments, then such conclusions would impact both on the ground of appeal on
limitation and the grounds of appeal on discrimination and in particular
victimisation. However, perhaps recognising the weakness of this ground in his
oral submissions, Mr Mead dealt with it near the close of his submissions.
22.
Mr Mead refers to numerous findings made by the tribunal that the
Claimant had failed to prove a primary case in relation to significant parts of
the evidence. He identifies 15 allegations where the Claimant’s memory was
found to be deficient in the sense of the Claimant not accurately establishing
primary facts in which any asserted discrimination could be established and where,
in particular, the Claimant failed in relation to the establishment of basic
facts, for example as to who was at a meeting, who did what, or who said what,
as well as whether such conduct had a discriminatory dimension. On the basis
that the Claimant was “an unreliable historian”, he submits, that no reasonable
tribunal would have made further findings that the Claimant had proven a prima
facie case on the basis solely of the Claimant’s recollection in other
identified respects. The tribunal failed, Mr Mead submits, to have regard to
the totality of the evidence including the medical evidence of Dr Oxlade, a
consultant psychiatrist, who concluded that the Claimant was “a sensitive man
with high standards”. Dr Oxlade “believed [the Claimant’s] perspective on
things seemed to be exaggerated” and he “took the view that the Claimant had
trouble understanding other people’s points of view” (para 164).
23.
We reject this submission. The tribunal had proper regard to the evidence
of Dr Oxlade. There is nothing perverse about rejecting the Claimant’s
evidence in relation to some allegations on the basis that the tribunal was not
satisfied that he had an accurate recollection of certain events but accepting
his evidence in respect of other allegations in relation to other specific
matters. The tribunal did not make a finding that it could not accept any
evidence from the Claimant which was not corroborated. The submission on this
ground of appeal made by Mr Mead is in effect that they should have done so. In
our view there is no foundation for this submission.
Grounds 1-9: findings of direct discrimination on grounds of
race and/or sexual orientation.
General
24.
It is the Appellant’s case that there was a generic failure by the
tribunal to establish a prima facie case of discrimination. Mr Mead criticises
the tribunal for appearing to have adopted a Laing approach by
scrutinising the Appellant’s evidence to assess whether the Appellant has
satisfied it that there was no discriminatory reason for the treatment
complained about. He submits that in those cases where the Appellant was able
to satisfy the tribunal, there is and can be no criticism. However, where for
differing reasons the tribunal was not so convinced, there is a potential
prejudice to the Appellant, should the tribunal have failed on the evidence to
have met the requirements at stage 1. In particular, he submits, there is an
absence in the tribunal’s reasoning as to how a hypothetical comparator would
have been treated, and why the alleged treatment was established, on a prima
facie basis, to be discriminatory on the prescribed grounds.
Ground 2: the finding at paragraph 263: “that on occasions
[the Claimant] was required to stop black and Asian people for white officers
and then to hand them over to white officers”.
25.
The pleaded allegation is set out at paragraph 32 of the judgment in the
following terms: “DC Inman, DC Marriott and DC Parker asked the Claimant on
several occasions to act as a ‘buffer barrier’ by stopping black and Asian people
for them first and then to hand the person over to them because ‘blacks don’t
complain about blacks’”. The finding made by the tribunal at paragraph 263
refers to “white officers” unspecified. There were no adverse findings made
against DCs Parker, Inman and Marriott at all. Mr Mead submits that the only
basis for concluding that the allegation was made out was that another person,
DC Delaviz, who worked on a separate team had been asked to stop passengers of
an Iranian background given that DC Delaviz was himself of Iranian background.
Accordingly, Mr Mead submits, there is no prima facie case established on the
evidence to support a contention that either DCs Inman, Parker or Marriott had
treated the Claimant less favourably or to indicate that the treatment of the Claimant
was on grounds of race.
26.
Mr Aggrey-Orleans refers to the evidence accepted by the tribunal that
the Claimant and DC Delaviz who are black and Asian respectively were asked to
stop black and Asian passengers, their white colleagues were not asked to act
as “buffers” and the denial of the practice by the Appellant. These facts, he
submits, set up a prima facie case of race discrimination and harassment for
which the Appellant had not offered an explanation, having denied that the practice
existed.
27.
In our judgment the evidence established a prima facie case from which
the tribunal could conclude that the Appellant had discriminated against the Claimant.
Further the tribunal in our view was entitled to take into account the denial
of the practice and the absence of an operational explanation as to why the
practice was followed in assessing the adequacy of the explanation put forward
by the Appellant.
Ground 3: Paragraph 273 and the comment of DS Osborne: “read
with a large malt in hand!” made in an e-mail in reference to the sickness
management contact log.
28.
The allegation at paragraph 47 is couched in terms of the MPS not taking
“the Claimant’s complaints” seriously. However the tribunal characterises the
allegation at paragraph 273 as that “his situation and health were treated
dismissively in an e-mail”. Mr Mead submits that is not the same: one referred
to complaints of the Claimant, the other refers to the prevailing circumstances
of the Claimant.
29.
At paragraph 99 the tribunal record the cross-examination of DS Osborne
and his explanation of the comment “read with a large malt in hand!” as a
comment meant in a light-hearted way and that “DI Quantrell does like malt”.
The tribunal rejected that explanation as “an explanation that ‘does not ring
true’”. The words used by DS Osborne “can only be inferred as indicating a
disparaging approach to the Claimant by DS Osborne”. Mr Mead observes that the
mere fact of disparagement does not meet the prima facie case. He submits that
the tribunal does not determine that the Claimant has been less favourably
treated than a hypothetical comparator nor does the tribunal make any finding
that there was a prima facie case that the criticism of the Claimant was made
on prescribed grounds of either race or sexual orientation. Accordingly there
is no prima facie case satisfying stage 1 of the two-stage test.
30.
Mr Aggrey-Orleans submits that the tribunal was entitled on the evidence
to find direct discrimination and harassment on the grounds of race and sexual
orientation where the Claimant’s evidence that DS Osborne was aware of the
allegations of discrimination had been accepted, DS Osborne’s denial of
knowledge of complaints had been rejected, and disparaging comments were being
made at a time when the Claimant had complained about discrimination. The
tribunal, he submits, had the evidence before it which entitled it to conclude
that the Claimant had been subjected to less favourable treatment than a
hypothetical comparator on the grounds of his protected characteristics at
stage 1 and then to go on to stage 2 at which point DS Osborne’s explanation
failed to show that the disparaging remark was in no sense whatsoever on the
grounds of the Claimant’s protected characteristics. That was because his
explanation was not believed by the tribunal. We agree. It was implicit in
the tribunal’s conclusion that DS Osborne would not have acted in the way he
did if the complaint had not been a complaint about discrimination. It is
clear that the tribunal understood the legal test. There was no need for the
tribunal to spell out the position of a hypothetical comparator.
Ground 4: paragraph 274: comment of DI Quantrell: “that’s
life”.
31.
Mr Mead accepts that it is not disputed that DI Quantrell may well have
used those words. The key issue is the context within which the comment was
made. Mr Mead submits that the tribunal failed to construct a hypothetical
comparator, failed to construct a finding of less favourable treatment and
failed to identify on what basis the comment was said to be on grounds of
either race or sexual orientation. He submits that the Claimant was an
unreliable witness and that the prima facie case is not made out in relation to
whether the comment was made in the context in which it is alleged by the Claimant
that it was said to be made. The comment in itself “that’s life” is neutral.
There must be, he submits, some evidence to support a determination that the
comment was made on the prescribed ground. There is no such finding.
32.
We do not accept Mr Mead’s submission. The context of the findings of
fact indicates this is a time when the Claimant had been complaining of
discrimination to his senior line managers and the Appellant had knowledge of
such complaints. The tribunal’s findings of fact, as Mr Aggrey-Orleans
submits, show that the tribunal rejected DI Quantrell’s evidence that the
comment was made on another occasion; the tribunal believed the Claimant’s
version of events; and this was a time when the Claimant was complaining about
discrimination and the Appellant was aware of it. The allegation of
discrimination was plainly an allegation of wrongdoing. The tribunal refers to
its findings of fact at paragraphs 104-106. In our view the tribunal was
entitled to conclude that the Appellant did not wish to deal with the
Claimant’s complaints.
Ground 5: paragraph 278: comment by DI Quantrell: “asked my
opinion whether the staff were wary because he was black or gay, I
categorically stated no, but to be realistic, I said staff would be wary if
they thought he would get them into trouble with the organisation” i.e. by this
I meant he had a personal agenda to progress his career or sue the organisation
based solely on his race or sexuality”.
33.
The findings of fact at paragraphs 125-126 record the content of the
telephone attendance note of DI Quantrell. Mr Mead submits that DI Quantrell
was asked his opinion whether staff were wary because the Claimant was black or
gay and in response DI Quantrell is recorded as “categorically” stating “no”.
On that basis the pleaded allegation is not made out. DI Quantrell then goes
on to state his thinking if the circumstances were considered to be different.
He refers to people using their personal agenda to progress their career,
wrongly or wrongfully, within the organisation by making allegations based on
race or sexuality. What DI Quantrell was referring to was people using their
race or sexual orientation as a means of advancement within the organisation.
Whether that is an acceptable comment or not is irrelevant. It is, Mr Mead
submits, a non-discriminatory comment.
34.
We reject this submission. We agree with Mr Aggrey-Orleans that the
claims of direct discrimination, harassment and victimisation on the grounds of
race and sexual orientation are evident on the facts and stage one is made out
on the facts. The tribunal rejected DI Quantrell’s evidence as to the
comment. The tribunal took into account the context in which the comment was
made, namely at a time when the Claimant was enquiring as to whether his race
and sexual orientation was affecting his relationships at work. The tribunal
found at paragraph 278 that “the Claimant’s individuality is inextricably
linked with his race and sexual orientation. To suggest to him that if he
pursued his complaints people would be wary of him, was inevitably linking that
to his race and sexual orientation”. DI Quantrell’s comments appeared to
discourage the Claimant from raising his concerns of how he perceived that he
had been treated. The tribunal was entitled, in our view, to draw inferences
from DI Quantrell’s threat to the Claimant of less favourable treatment
compared to a hypothetical comparator on the grounds of the Claimant’s
protected characteristics.
Ground 6: paragraph 280: careless identification of homophobic
comments the Claimant was complaining about by DI Quantrell.
35.
The tribunal accepted DI Quantrell’s evidence that he had used the wrong
terminology when identifying the precise derogatory words about which the Claimant
was complaining. The tribunal found that DI Quantrell had been careless. Mere
carelessness, Mr Mead submits, cannot without more lead to a finding of less
favourable treatment on grounds of sexual orientation. Further it is not
accepted that the Claimant suffered a detriment in terms of the terminology
wrongly used. The Claimant corrected the erroneous terminology at the
meeting.
36.
The allegation was that DI Quantrell had falsely asserted in a case
conference on 14 October 2009 that the Claimant had alleged that he had been
called a “queer” and “faggot”. Mr Aggrey-Orleans points to the tribunal’s
findings of fact and conclusion that “the lack of detail is important because
it does show a lack of care in dealing with the Claimant’s concerns and
allegations. It illustrates a perhaps subconscious assumption on the part of
DI Quantrell that given that the Claimant was gay, then those were the words
that he would have taken offence at”. This, he submits, amounted to direct
discrimination and harassment on the grounds of the Claimant’s sexual
orientation.
37.
In our view the tribunal was entitled in the context of the totality of
the evidence concerning DI Quantrell and the findings that the tribunal made in
relation to him (see Grounds 3-5, 7 and 9) to conclude that similar
carelessness would not have occurred in a hypothetical comparator
circumstance. Plainly there was some, albeit perhaps short term, detriment to
the Claimant.
Ground 7: paragraph 284: excessive contact by DI Quantrell
during October 2009
38.
Mr Mead submits that it appears that the tribunal has sought to turn a
complaint of victimisation into a basis for finding direct discrimination. The
tribunal state that the existence of the Claimant’s complaints “relying on
those characteristics that caused the [Appellant] to press the Claimant to try
and get closure of the problem quickly” amounted to direct discrimination. Mr
Mead asks on what basis the tribunal has found direct discrimination against
the Appellant on grounds of race and sexual orientation.
39.
Mr Aggrey-Orleans submits that the Claimant’s allegations must be viewed
in the context of the totality of the evidence as to how the Claimant was
treated. The oppressive nature of the calls were viewed against the
Appellant’s own procedure that indicated a call once a week for the first 27
days of sickness and once per fortnight thereafter. The tribunal accepted the Claimant’s
account as to the oppressive and excessive contact, rejected DI Quantrell’s
evidence and that the same was done because the Claimant was black and gay and
had complained about discrimination which situation the Appellant was keen to
control given potential damage to the Appellant. Further the Appellant was not
able to demonstrate that the frequency of calls was in no sense whatsoever on
the grounds of race and sexual orientation.
40.
In our view the tribunal was entitled to conclude that
“The Respondent has not been able to prove on the balance of
probabilities that the frequency of contact with the Claimant in October 2009
was in no sense whatsoever on the grounds of his race or sexual orientation.
On the contrary, the Tribunal draws the inevitable conclusion that it was
precisely because of the nature of the complaints that the Respondent was keen
to try and resolve the matters sooner rather than later. The Tribunal finds
that the excessive contacting of the Claimant in October 2009 by CI Quantrell
did amount to direct discrimination on the grounds of his race and sexual
orientation, as it was the existence of his complaints relying on those
characteristics that caused the Respondent to press the Claimant to try and get
closure of the problem quickly.” (Para 284).
Ground 8: paragraph 285: comment of CI D’Orsi that the Claimant
was not suitable for SO15.
41.
Mr Mead submits that again it appears that the tribunal has sought to
turn a complaint of victimisation into a basis for finding direct
discrimination. The pleaded case as set out at paragraph 58 is: “The DCI said
he thought the Claimant would be suited to a Borough when or if he returned as
there are more officers of his age and more diversity. He said the Claimant
was not able to do the job he wanted to do within SO15 Special Branch because
of racism and homophobia. Both the DCI and DI Quantrell said SO15 has an older
age group, which meant they were more set in their views”. Mr Mead submits
that the evidence as to what was said and found by the tribunal (see paragraph
285) does not reflect the pleaded case. The allegation refers to what DCI
D’Orsi said. It does not refer to what he meant, or what the Claimant
understood (see paragraph 149). The comment was not made on the grounds of
race and sexual orientation.
42.
In our judgment the Claimant having reported discrimination in his role
was being told to move from that role to a role where he was less likely to be
exposed to racism and homophobia. At paragraph 149 the tribunal said: “On
balance the tribunal accept that in the context of discussing options, DCI
D’Orsi did say to the Claimant that if he moved to another policing role away
from SO15, he would not face the issues he had at Special Branch”. At
paragraph 285 the tribunal found as a fact that the comment was clearly made to
the Claimant because of his sexual orientation and race. We accept Mr
Aggrey-Orleans’ submission that the tribunal’s conclusion comes from an
assessment of the evidence and the clear context of the discussion that the
Claimant was not suited to SO15 because of the level of discrimination within
it, and would be better suited elsewhere where there was likely to be less
discrimination. The tribunal found the context of the conversation to be
important. The tribunal felt that DCI D’Orsi was conceding that there were
issues within SO15. That is a permissible conclusion for the tribunal to form
of the evidence, as was the tribunal’s impression that DCI D’Orsi was telling
him that he was not suited to SO15.
Ground 9: paragraph 286: finding that DI Quantrell was
aggressive in tone to the Claimant because he was angry and upset at what he
saw as criticism of himself in the Claimant’s regulation letter.
43.
Mr Mead submits that the first stage test has not been made out and that
again there appears to be confusion of the test for direct discrimination and
that for victimisation. The tribunal found that
“DI Quantrell was aggressive in tone to the Claimant because he
was angry and upset at what he saw as criticism of himself in the Claimant’s
regulation 28 letter. His treatment of the Claimant was as a result of the
Claimant having raised his concerns of race and sexual orientation
discrimination and amounted to direct discrimination, harassment and
victimisation. Given all the circumstances, including in particular the
perception of the Claimant, it is reasonable to consider that it had the effect
of creating an intimidating hostile degrading humiliating or offensive
environment for the Claimant.” (Para 286).
Thus the tribunal find that the Claimant was treated in the way
that he was as a result of the criticisms of DI Quantrell in the Claimant’s
letter. Mr Mead submits this is a non-discriminatory explanation. The
tribunal, he submits, failed to make findings of less favourable treatment, or
that such treatment was done on a prescribed ground.
44.
Mr Aggrey-Orleans submits the tribunal made a finding that DI Quantrell
reacted negatively to the Claimant’s complaint of discrimination, that DI
Quantrell’s aggression was because the Claimant was black and gay and was
complaining about him together with raising concerns of race and sexual
orientation discrimination. The evidence also includes DI Quantrell’s evidence
that the Claimant was “damaging our good name” by raising his concerns of
discrimination.
45.
We have no doubt that the tribunal was entitled to find that this
amounted to harassment and victimisation (see below), however we do not
consider that in the light of the specific findings made in paragraph 286 that
this amounted to direct discrimination.
Ground 1: finding that criticism of the Claimant in front of
others over the submission of a leave form constituted direct discrimination on
grounds of race, on the basis that the Claimant was the only mixed-race officer
on the team.
46.
The Appellant appeals this finding even though the tribunal found it was
not just and equitable to extend time, and therefore the complaint was
dismissed as being out of time. However the finding is a matter of public
record, and stands as a determination in respect of the record of the officer
concerned.
47.
This particular complaint was said to involve the submission of a leave
form where the Claimant was criticised by DS George in front of DC Jenkins and
DS Stafford who both laughed at the Claimant, as a consequence of which the Claimant
felt humiliated. The tribunal made a finding of discrimination on grounds of
race (paragraphs 243 and 244). Mr Mead refers to the finding at paragraph 19
that the evidence of the other officers was that DS George did nothing to
humiliate the Claimant in front of others, which evidence the tribunal
accepted. This finding, he submits, is therefore in direct contradiction with
the Claimant’s pleaded case (paragraph 15). Mr Mead further submits that the
tribunal failed to construct a prima facie case as to how a hypothetical
comparator would have been treated or identifying on what basis such treatment
is said to be on grounds of race.
48.
Mr Aggrey-Orleans contends that the correct test was applied in
paragraph 244 where the tribunal finds less favourable treatment of the Claimant
compared to his white colleagues on the grounds of race and draws an inference
from the fact that the Claimant was the only mixed race officer treated this
way that it was on the grounds of his race. We agree with Mr Aggrey-Orleans
that this, combined with DS George’s denial that the incident occurred,
contrary to the tribunal’s finding, further entitled the tribunal to draw the
inference that the treatment was on the grounds of race.
Ground 10: findings of harassment
49.
The allegations found by the tribunal to constitute harassing conduct
include the following: comment by DS Osborne: “being one of those people” (para
268); comment by DS Osborne: “read with a large malt in hand!” (para 273);
comment by DI Quantrell: “that’s life” (para 279); DI Quantrell failing to
approach the Claimant’s allegations with an open mind (para 279); careless
identification of homophobic comments by DI Quantrell (para 280); excessive
contact by DI Quantrell during October 2009 (para 284); comment by DCI D’Orsi
that the Claimant was not suitable for SO15 (para 285); and finding DI
Quantrell was aggressive in tone because he was angry and upset at criticism of
him (para 286). The findings against DC Howarth and DS Addis in respect of
harassment are not challenged.
50.
Mr Mead submits that given the tribunal’s findings as to the sensitivity
of the Claimant (paras 164, 167 and 289), it is necessary in each instance of
potential harassment for there to be some evidence and reasoning to support the
basis upon which the tribunal found that it was reasonable to consider that the
index behaviour would reasonably be considered to be harassing behaviour, not
merely that the Claimant perceived that he was subject to harassment. In none
of the instances of a finding of harassment, Mr Mead submits, is there such a
reasoned basis. Further in relation to the findings at paragraphs 274, 278-280
and 284-286 the tribunal either made no distinction between the tests for
discrimination and harassment, or addressed the issue only from the point of
view of the Claimant’s perception. The Appellant’s case is that none of the
incidents meet the threshold of severity or seriousness to justify a finding of
harassment.
51.
Mr Aggrey-Orleans submits that the tribunal had in mind the relevant
statutory provisions relating to harassment and it is accepted that it applied
the correct test in relation to the comments by DC Howarth and DS Addis. That
being so it is submitted that it is illogical and unlikely that the tribunal
did not apply the test consistently to all allegations of harassment made. Mr
Aggrey-Orleans submits that in reaching its conclusion on each allegation of
harassment the tribunal took into consideration its assessment of the
Claimant’s evidence on that allegation. Where the tribunal thought that the
Claimant was being unreasonably sensitive it stated so. For example at
paragraph 256 the tribunal state:
“If the comment had arisen as a result of the race or ethnic or
national origin of DC Delaviz, could it amount to harassment of the Claimant
applying the provisions of section 3A(1)RRA? In the Tribunal’s view, no. It
should not have reasonably been considered as having that effect, taking into
account the over-sensitive perception of the Claimant. It amounted to the
Claimant taking offence by proxy on behalf of DC Delaviz, who himself was not
offended; and could not have amounted to harassment in all the circumstances
and on all the facts found in this case.”
Similar examples of the tribunal adopting the proper assessment
of the Claimant’s evidence appear in paragraphs 265 and 275 of the decision.
52.
As for paragraph 268 (the comment made by DS Osborne: “being one of
those people”, Mr Aggrey-Orleans does not accept that the tribunal found an act
of harassment based on words DS Osborne was not alleged to have said. The tribunal
recorded the allegation made by the Claimant at paragraph 36. This statement
was denied by DS Osborne and the Claimant’s evidence was accepted. The
Claimant’s evidence was that DS Osborne intended to suggest that the Claimant
was also “one of those people”. This evidence was accepted. Mr Aggrey-Orleans
submits that the tribunal’s finding of fact is a reference to the allegation
that was made by the Claimant. The words “being one of those” amounted to no
more than the tribunal paraphrasing the allegation and the Claimant’s sentiment
about DS Osborne’s statement.
53.
The tribunal was aware of the test in relation to harassment which is
set out in its conclusions at paragraph 267 of the judgment and in our view the
tribunal was entitled to make all the findings of harassment that it did,
having given careful consideration to the evidence that it had heard.
Grounds 11-15: findings of victimisation on grounds of race
and/or sexual orientation
54.
Findings made by the tribunal of victimisation are at paragraphs 278-279
and 284-286. We considered the findings in these paragraphs in respect of
direct discrimination when considering grounds 5, 7, 8 and 9 at paragraphs 33-34
and 38-45 above.
Ground 11: Burden of proof
55.
Mr Mead observes that the tribunal correctly recorded that there is no
reversal of the burden of proof in relation to victimisation in race cases
(para 236), however he submits that the tribunal thereafter made no distinction
between the respective victimisation causes of action when applying its legal
analysis at paragraphs 278 and following. The tribunal failed, he submits, to
apply the two stage Igen test to the victimisation claims on the
ground of sexual orientation. There is, he submits, no separation of the
differing legal considerations in respect of direct discrimination, harassment
and victimisation, which appear to be rolled into one.
56.
Mr Aggrey-Orleans contends that the tribunal knew and applied the
correct test (see paras 227, 230 and 236) and it is unrealistic to suggest that
the tribunal was applying the same test for direct discrimination, harassment
and victimisation, having itself set out the different tests.
57.
In our view there is no merit in this criticism of the tribunal.
Ground 12: paragraph 278: comment by DI Quantrell: “asked my
opinion when staff were wary because he was black or gay, I categorically
stated no, but to be realistic, I said staff would be wary if they thought he
would ‘get them into trouble with the organisation’ i.e. by this I meant if he
had a personal agenda to progress his career or sue the organisation based
solely on his race or sexuality”.
58.
Mr Mead submits that the tribunal mis-characterises what DI Quantrell
said, as found at paragraph 125, and fails to analyse the reason why DI
Quantrell said what he did. That reason why is a non-discriminatory reason,
referring as it did to an agenda of advancement, whereby certain categories of
person might receive preferential treatment should they make complaint.
Applying the reason why test, Mr Mead submits, no victimisation is made out.
59.
At paragraph 278 the tribunal made the following material findings:
“(1) The question posed by the Claimant was whether staff were
wary of him because he was black or gay.
(2) The response from CI Quantrell ‘was to categorically state
no’, but he then went on to say that staff ‘would be wary if they thought he
would get them into trouble with the organisation’.
(3) In all the circumstances CI Quantrell’s comment appears to
discourage the Claimant from raising his concerns at how he perceived he had
been treated.
(4) CI Quantrell stated ‘It was not about race or sexuality but
(the Claimant) as an individual’.
(5) ‘The Claimant’s individuality is inextricably linked with
his race and sexual orientation. To suggest to him that if he pursues his
complaints people would be wary of him, was inevitably linking that to his race
and sexual orientation.”
60.
In our view it is necessary to consider CI Quantrell’s response as a
whole. The tribunal was entitled to find that CI Quantrell was discouraging
the Claimant from pursing or raising his complaints. This amounted to
victimisation.
Ground 13: paragraph 279: CI Quantrell failed to approach the
Claimant’s allegations with an open mind
61.
Mr Mead contends that the tribunal make no finding as to whether CI
Quantrell said what the Claimant alleged. On this basis alone, the particular
complaint set out at paragraph 52 must fail. Further Mr Mead submits that the
race and/or sexual orientation of the Claimant are not relevant components of
any test for victimisation, and accordingly the tribunal has applied an
incorrect test. Also it is said that it is unclear what the detriment is that
the Claimant has suffered.
62.
CI Quantrell had researched the Claimant to establish if he was “Ok” or
a “troublemaker”. (Para 129). In our view the tribunal was entitled to draw
from the evidence the inference that the Claimant’s race and sexual orientation
were the reasons why CI Quantrell doubted whether the Claimant was a “genuine
case” or not and that amounted to victimisation of the Claimant (para 279); and
that the Claimant had suffered a detriment.
Ground 14: paragraph 284: excessive contact by CI Quantrell
during October 2009
63.
Mr Mead submits that it is not understood how an employer striving to
get an employee back to work when that employee is disengaging with the
employer can be said to be less favourable treatment. Analysing the reason
why, demonstrates a non-discriminatory reason: namely resolution of the issues
by getting the Claimant back to work. Mr Mead submits that given the lack of
differentiation between discrimination, victimisation and harassment, it is
wholly uncertain how the tribunal addressed its mind to the different causes of
action.
64.
The tribunal found that the treatment of the Claimant as set out in
paragraph 284 of the decision “did amount to victimisation both on grounds of
race and sexual orientation, arising directly as it did from him having raised
those very complaints”. In our view this was a conclusion the tribunal was
entitled to reach on the evidence.
Ground 15: paragraph 285: comment of DCI D’Orsi that the
Claimant was not suitable for SO15.
65.
Mr Mead submits that given the tribunal’s findings as to the rationale
for the conversation and the intent of the Appellant to seek to return the
Claimant to work, the “reason why” found is a non-discriminatory reason, and
that the words were not spoken “on the ground that” the Claimant was making
complaints of discrimination. Offering a move by stating that officers are
more the Claimant’s age and more diverse and that the Claimant would not face
the issues the Claimant had faced at Special Branch constitutes, he submits, a
reasonable approach in the circumstances of the difficulty both the Appellant
faced and the Claimant faced.
66.
The Claimant was told by DCI D’Orsi that he was not suitable for SO15.
At paragraph 285 of the decision the tribunal found that this was an act of,
inter alia, victimisation “because the Claimant had alleged that race and
sexual orientation discrimination had occurred. DCI D’Orsi was conceding in
that conversation with the Claimant that there were issues at SO15 arising from
racism and homophobia”. The tribunal was entitled, in our view, so to find.
Paragraph 286: CI Quantrell was aggressive in his tone to the
Claimant
67.
In his oral submissions Mr Mead challenged the finding made in paragraph
286 that CI Quantrell’s aggressive tone amounted to victimisation. We
considered this behaviour in relation to the finding of direct discrimination
which is the subject of challenge in Ground 9 (see paras 43-45 above).
68.
The tribunal found that CI Quantrell was aggressive in his tone to the
Claimant and “His treatment of the Claimant was as a result of the Claimant
having raised his concerns of race and sexual orientation discrimination” (para
286). In our view the tribunal was entitled to conclude that given all the
circumstances it was reasonable to consider that “it had the effect of creating
an intimidating, hostile, degrading, humiliating or offensive environment for
the Claimant”. The tribunal was aware of the statutory provisions relating to
victimisation (see paras 227 and 230 of the Decision). This was a conclusion
which, in our view, the tribunal was entitled to find amounted to victimisation.
Ground 16: limitation
69.
In respect of time issues there are three grounds of challenge to the tribunal
decision: first, that the tribunal failed to address the complaints against DC
Howarth (March 2009) and DS Addis (June 2009); second, the tribunal erred in
its determination of a “continuing act”; and third, the tribunal wrongly
exercised its discretion in extending time.
Complaints against DC Howarth (March 2009) and DS Addis
(June 2009)
70.
The tribunal decided that the claim against DS George, which was some 15
months out of time, was “on the facts found not part of an ongoing situation or
continuing state of affairs, arising as it does from a isolated act at another
Terminal involving another team” (para 293). Accordingly the tribunal did not
consider it appropriate in all the circumstances to extend time in respect of
the claim against DS George. Mr Aggrey-Orleans accepts that the same reasoning
should apply to the claim against DC Howarth, and therefore the tribunal had no
jurisdiction to consider that claim.
71.
Mr Mead submits that time should not be extended in respect of the claim
against DS Addis for the same reason. This was also a stand-alone claim
involving offensive comments made during a presentation at Paddington Police
Station (para 269). DS Addis had no connection to Heathrow, and was not
therefore connected to the line management at Heathrow, or T5, or the
day-to-day work environment of the Claimant. In our judgment the tribunal’s
reasoning in the case of DS George applies equally to the case of DS Addis, and
therefore the tribunal had no jurisdiction to consider that claim also.
Determination of a continuing act
72.
The “act” which is continuing, for the purposes of the legislation, is
the act about which complaint is made. Mr Mead submits that in the present
case the Claimant did not make complaint that the Reporting Wrongdoing Policy
was being applied in a discriminatory way. The tribunal was therefore wrong to
take into account the failure on the part of the Appellant “to address, comply
with and implement its reporting wrongdoing policy in dealing with the
Claimant’s complaints” (para 292), as acts which persisted for the duration of
the Claimant’s period off sick from July 2009.
73.
In our judgment it is clear from the tribunal’s detailed examination of
the individual complaints that whilst it expressed itself when summarising
continuing act by reference to the wrongdoing policy it had proper regard to
all the evidence when reaching the conclusion that there was a “continuing
act”.
Exercise of discretion in extending time
74.
Mr Mead submits by reference to the documentation before the tribunal
that the tribunal was wrong to find that “the Claimant did not receive any
advice or assistance in progressing the Employment Tribunal claim until he met
with legal advisers in January 2010” and that “it was not until 5 May 2010…
that the Claimant was able to instruct a solicitor in respect of the first
Employment Tribunal claim…” (para 295). We do not accept these submissions.
The Claimant set out in his witness statement at paragraphs 677-704 the
material facts as to when he sought and obtained legal advice and his health
and state of mind at the time. We understand that the Claimant was not
cross-examined on these matters. Mr Aggrey-Orleans accepts that it may have
been better if the tribunal had said that it was not until 5 May 2010 that the
Claimant was able sufficiently to instruct a solicitor in respect of the
first claim. However in our view the tribunal made findings of fact that it
was entitled to do on the evidence before it.
Second claim: the leak to The Sun newspaper
Ground 18: findings of victimisation on ground of race
and/or sexual orientation
75.
The relevant findings of fact made by the tribunal are set out at paragraphs
211 and following in the Judgment. On the afternoon of Friday 23 July 2010 Mr
Fedorcio, Press Officer at the Appellant, received a telephone call from
Anthony France, a journalist from The Sun Newspaper. Mr France said he was aware that the Claimant had submitted an employment tribunal claim for
race discrimination and that he intended to run a story about the claim, either
on Monday or Tuesday the following week. He told Mr Fedorcio that he intended
to write that the Claimant’s claims were without foundation. Mr France referred to a specific allegation that on a visit to a mosque the Claimant’s white
colleagues refused to eat the food offered by the hosts and that this behaviour
was evidence of racism. Mr France said that in fact the colleague in question
had been lactose intolerant and had politely declined the food offered. It
appeared to Mr Fedorcio that Mr France had a very high level of knowledge of
the claim. He said “Given what seemed to be the very precise nature of the
incident he related (the mosque/food) it appeared to me that Mr France may have
received the information from one of DC Maxwell’s colleagues who was there”
(para 211).
76.
On 27 July the Claimant’s solicitor, Ms Arpita Dutt, returned a call
made to her by Mr France. Her evidence, which was not challenged, was:
“Mr France identified himself as a journalist and informed me
that an article would be published later that week in the Sun Newspaper… He
informed me that the Sun had been informed about the Claimant’s claim… He referred
to one claim of a group visit to a mosque and during that visit to the mosque,
an Officer had refused to eat curry. He said that the non-curry eater was on a
low cholesterol diet because of an illness and that was why he had refused to
eat. … I advised Mr France that he only had a snapshot of the claim, that the
defence had not even been filed at the Employment Tribunal and that the claim
was not in the public domain as yet and that he knew more about the defence
than we did. In particular I noted that Mr France had been informed of aspects
of the Respondent’s potential defence in relation to why an Officer had refused
to eat curry at the Mosque and the potential denial of the homophobic comments
alleged to be made based on an Officer who had alleged to have met him
previously having worked in a gay area in city centre Manchester. These were
issues that could not have been known to me, or the Claimant, as the Grounds of
Resistance had not yet been filed by the Respondent…” (Para 215).
77.
The conclusions of the tribunal in respect of the threatened Sun story
are set out at paragraphs 296 and 297 of the Judgment.
“296. The Tribunal refers to its findings of fact at paragraphs
[211 and following]. The information about the claim was clearly not disclosed
by the Claimant to Mr France, the Sun reporter. The Tribunal is entirely
satisfied on the evidence heard that on the balance of probabilities the
information about the Claimant’s case acquired by the Sun came from an officer
working for the Respondent. What is particularly significant is Mr France’s account, as given to the Claimant’s solicitor, that an officer attending the
mosque had a low cholesterol diet. That information could not have come from
the Claimant or anyone connected with the Claimant’s claim, because it was not
until the cross-examination of Mr Jenkins that the Claimant learned that he had
a low cholesterol diet. Indeed Mr Fedorcio, who spoke to Mr France, thought that the story had come from one of the Claimant’s colleagues such was the level of
detail that Mr France had.
297. Further the response had not been completed and presented
on behalf of the Respondent at that stage. The Respondent is vicariously
liable for the actions of its Police officers. For the Respondent, Mr Mead
argued that it is necessary to identify the individual who is liable under
section 32 of the Race Relations Act, that is whether it is an employee in the
course of employment or an agent otherwise stage one of the burden of proof
test is not met. He argues that if the Tribunal find that the Claimant has
proved primary facts from which the Tribunal could conclude in the absence of
an adequate explanation from the Respondent that the information leaked to Mr
France came from the Respondent, then the Respondent is not in a position to
prove on the balance of probabilities that the release of the information was
in no sense whatsoever on the grounds of the Claimant’s race or sexual
orientation. The Tribunal do not accept that argument. To do so would make it
virtually impossible for a Claimant, in similar circumstances where information
is leaked that can, on the facts found, only have come from within a Respondent
organisation, to pursue a claim unless they are able to identify who actually
leaked the information. That is not in this Tribunal’s view a purposive
interpretation of Section 32 on facts such as these, and the Tribunal rejects
that argument.”
78.
In Lister and others v Hesley Hall Ltd [2001] UKHL 22 the
House of Lords held that the determining factor concerning liability was
whether the employee’s torts were so closely connected with his employment that
it would be fair and just to hold his employer vicariously liable.
79.
In Chief Constable of the Lincolnshire Police v Stubbs
[1999] IRLR 81 the applicant, a member of the Lincolnshire Constabulary,
complained that during the time she was seconded to the North East branch of
the Regional Crime Squad she was subjected to two incidents of inappropriate
sexual behaviour from DS Derek Walker, who was also a member of the
Lincolnshire Constabulary seconded to the North East branch of the Regional
Crime Squad. The employment tribunal upheld her complaint. On one occasion
the incident took place in a public house after her term of duty where she met
other police officers, including DS Walker. The second occasion was at a
leaving party attended by the applicant and DS Walker and others. The tribunal
said that: “these incidents were connected to work and the work place. They
would not have happened but for the applicant’s work. Work related social
functions are an extension of employment and we can see no reason to restrict
the course of employment to purely what goes on in the workplace”. The
Employment Appeal Tribunal dismissed the appeal. Morrison J (President) said
at paragraph 44:
“… We concur with the findings for the industrial tribunal, that
the two incidents referred to, although ‘social events’ away from the police
station, were extensions of the workplace. Both incidents were social gatherings
involving officers from work either immediately after work or for an organised
leaving party. They come within the definition of course of employment, as
recently interpreted by the Court of Appeal in Jones v Tower Boot Co. Ltd
[1997] IRLR 168 and the case of Waters v The Commission of Police of the
Metropolis [1997] IRLR 589. It would have been different as it seems to us
had the discriminatory acts occurred during a chance meeting between Mr Walker
and the applicant at a supermarket, for example, but when there is a social
gathering of work colleagues such as there was in this case, it is entirely
appropriate for the tribunal to consider whether or not the circumstances show
that what was occurring was an extension of their employment. It seems to us
that each case will depend upon its own facts. The borderline may be difficult
to find. It is a question of good exercise of judgment by an industrial jury:
whether a person is or is not on duty, and whether or not the conduct occurred
on the employer’s premises, are but two of the factors which will need to be
considered. …”
80.
Mr Mead submits that the tribunal failed to have regard to the
obligation on the Claimant to prove at stage 1 of the two-stage test in Igen
the primary facts, in particular that the leaker was acting in the course
of his employment. He submits that unless the Claimant is able to prove
primary facts as to the identity of the tortfeasor, there is no basis upon
which a secondary liability can be imposed on the employer under section 32.
81.
We reject this submission, as did the tribunal. The tribunal was
entirely satisfied on the evidence heard that on the balance of probabilities
“the information about the Claimant’s case acquired by the Sun came from an
officer working for the Claimant” (para 296). Mr Aggrey-Orleans observes that
the Appellant did not offer any alternative explanation of how else the Sun
acquired the story from the Appellant, other than Mr Fedorcio thinking that the
source of the leak may be one of the Claimant’s colleagues due to the precise
details of information of the mosque claim (para 211).
82.
The purpose of the leak, Mr Aggrey-Orleans submits, was to protect the
reputation of the Metropolitan Police Service in circumstances where the
Claimant had made allegations of discrimination against fellow police
officers. Put broadly, Mr Aggrey-Orleans submits, the subject matter of the
leak by an officer working for the Appellant was plainly closely connected with
his employment.
83.
In our view the tribunal was entitled to find that the leak had come
from an individual for whose actions the Appellant was vicariously liable,
given the detailed knowledge that Mr France had of the claim and aspects of the
Appellant’s potential defence and Mr Fedorcio’s belief that Mr France had
received the detailed knowledge of the mosque/food incident from one of the
Claimant’s colleagues who was there.
Conclusion
84.
It is clear that the tribunal considered all the evidence in relation to
each and every allegation with considerable care. The Judgment of the tribunal
runs to 113 pages. At the outset in paragraph 3 the tribunal “considered how
best to approach the identification of issues”. Paragraph 3 continued:
“…The starting point must be the amended details of claim dated
14 May 2010. The Tribunal set out below, using the same paragraph numbering as
that contained in the amended statement of claim, the relevant paragraphs on
which the Claimant relies in support of the various claims made. Whilst that
clearly results in a substantial amount of the pleading being incorporated into
this Judgment, in the Tribunal’s view that is an appropriate way to approach
setting out the issues as it ensures that the pleaded case is directly
addressed in the conclusions that follow after the Tribunal’s finding of fact.”
At pages 39-53 the tribunal set out the factual issues and legal
claims for determination.
85.
At paragraph 6 the tribunal provided a summary of their overall
impression of each witness which further indicates the care they have taken in
assessing the factual evidence. Very detailed findings of fact are set out at
pages 59-129. The statement at the outset of the tribunal’s conclusions (which
are set out at pages 134-150) that “The conclusions … are cross-referenced to
the factual issues identified in the amended statement of claim incorporated in
this Judgment” (para 238) again indicates the methodical approach taken by the
tribunal.
86.
In our view the criticism of the tribunal that it failed to set out the
primary facts with clarity is without merit. Further, in respect of the
complaints of direct discrimination, the tribunal cannot be criticised for not
going through the two-stage process in relation to each complaint. We are
satisfied that the tribunal properly tackled the issues arising in this case in
the most convenient and appropriate way, having regard to all the circumstances
of the case. It is clear that the tribunal had the two stage process set out
in Igen v Wong well in mind. When dealing with the first
allegation in its Conclusions the tribunal stated at para 240:
“Having applied the two-stage process set out in Igen v Wong,
the Tribunal do not find from their findings of fact (paragraphs 8-14 above)
that the Claimant has proved facts from which the Tribunal could conclude, in
the absence of an adequate explanation, that the Respondent had committed
unlawful acts of discrimination as alleged.”
87.
There was no obligation on the tribunal to refer to the two-stage
process again in relation to each and every complaint or indeed to adopt the
two-stage process in relation to each and every complaint if the tribunal
considered it was not appropriate to do so. Mr Mead did not in his final
written submissions to the tribunal (B442-447) suggest that it should.
88.
Mr Mead disavowed a reasons challenge. However the reality in our view,
as Mr Aggrey-Orleans contends, is that this appeal is largely an attack on the
tribunal’s findings of fact and adequacy of reasons. The only perversity
challenge expressly put forward is in Ground 17 (see paras 21 to 23 above)
which encapsulates the Appellant’s real complaint, namely that all the
complaints made by the Claimant are made up. After a painstaking analysis of
the factual evidence the tribunal rejected this suggestion and there is no basis
in our view for this tribunal to interfere with the findings of fact made and
the conclusions reached by the tribunal, save to the limited extent we have
indicated.
89.
For the reasons we have given we dismiss this appeal in relation to both
claims save in the following respects: in relation to the first claim we allow
the appeal against the finding of direct discrimination challenged in Ground 9
(see paras 43-45 above), and in relation to Ground 16 we find that the tribunal
had no jurisdiction to consider the complaints against DC Howarth and DS Addis
(see paras 70-71 above).
